SUPREME COURT HELD THAT A CRIME COMMITTED AS A JUVENILE SHOULD NOT BE HELD AGAINST THE PERSON IN HIS/HER ADULTHOOD

The Supreme Court of India has in a recent case of Union of India vs. Ramesh Bishnoi 29-11-2019 held that, “The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as The Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person, without any stigma.” This Judgement was given by Justice UU Lalit and Justice Vineet Saran, where they have dismissed an Appeal filed by Central Government in a matter concerning employment in the Central Industrial Security Force (CISF).

In this case, Mr. Ramesh Bishnoi (the Respondent) was denied employment in CISF, as at the time of appointment he had disclosed that previously he was charged with offences under Sections 354 (assault with intend to outrage the modesty of a woman), 447 (criminal trespass) and 509 (insult to outrage the modesty of a woman) of the Indian Penal Code as amended thereof (IPC) in 2009. These complaints were filed against him when he was minor. Also, the case was dismissed due to lack of evidence and he got acquitted with clean hands. But when his employment with CISF was rejected multiple times, the Rajasthan High Court passed directions to CISF to reconsider his application. Aggrieved by the said Order of the High Court, the Central Government approached the Hon’ble Supreme Court, whereby the Apex Court held that even if the Respondent committed such a crime when he was a minor, he could not be denied employment when he became a major, as any act or omission committed by a juvenile cannot be held against him when he attains majority.

Therefore, the Apex Court held that based on the principle of fresh start under the Juvenile Justice (Care and Protection of Children) Act, 2015, all past records of any child under the juvenile justice system should be erased except in special circumstances. This further helps to maintain the dignity of a person who has been convicted or charged for any offence when he was a juvenile.

Aakritee Gambhir

The Indian Lawyer

Associate

SUPREME COURT STRIKES DOWN CONSTITUTIONAL VALIDITY OF SECTION 87 OF ARBITRATION AND CONCILIATION ACT 1996

The Supreme Court of India has in a recent case of Hindustan Construction Company Limited and Anr. vs Union of India and others dated 27-11-2019 struck down the constitutional validity of Section 87 of Arbitration and Conciliation Act 1996 as amended in 2019 (Act).

The Petitioner, Hindustan Construction Company Limited, had challenged Section 87 of the Amendment Act 2019 on the grounds that although certain arbitral awards were in their favour and certain amounts were due under such awards from the Government bodies, but as soon as the judgment debtors made an application under Section 34 before a court of law, thereby challenging such arbitral award, the court imposed an automatic stay on the execution of such award and the Petitioner was left remediless until and unless such court proceedings were complete. As a result, the Petitioner had become incapable of paying money to various operational creditors who had supplied manpower, machinery, etc to the Petitioner, and thus, they had initiated the process of recovery of dues under the Insolvency and Bankruptcy Code 2016 as amended thereof (the Code). Thus, the Petitioner became vulnerable to being declared insolvent under the Code.

The Apex Court discussed in this case that the 2015 Amendment Act had corrected certain mischiefs prevalent in the Act including the provision of application for setting aside an arbitral award in a court of law, which had acted as an automatic stay on enforcement of arbitral award, leaving the decree holder remediless till the court proceedings were complete. This 2015 Amendment Act had application with respect to court proceedings arising out of arbitral proceedings that are pending on, or commenced on or after 23-10-2015. Thus, accordingly, the courts had allowed a number of Section 34 applications (i.e. court proceedings to set aside arbitral award) that were pending on/commenced on or after 23-10-2015, and also granted conditional stay on enforcement of awards after deposits were made by judgment debtors. This ensured that there was a speedy disposal of court matters in arbitration cases.

The Apex Court further discussed that with the introduction of Section 87 of the Act in 2019, the provision of automatic stay on enforcement of arbitral award has been reinstated, thereby causing delay in disposal of cases, and an increase in the interference of courts in arbitration matters, which defeated the very object of the Act. Further, this 2019 Amendment Act has application with respect to court proceedings arising out of arbitral proceedings that were commenced on or after 23-10-2015. As a result, a number of refund applications had been filed by judgment debtors for refund of deposits made by them against grant of conditional stay in court proceedings that had arisen out of arbitral proceedings commencing on or after 23-10-2019. Further, Section 87 of the Act has also treated court proceedings pending on 23-10-2015 differently than those commenced on or after 23-10-2015.

Thus, on the aforesaid grounds the Apex Court considered Section 87 to be arbitrary and thus, violative of Article 14 of Constitution of India, as it brought back the mischief that was corrected by the 2015 Amendment Act. Therefore, the Supreme Court struck down the constitutional validity of Section 87 of the Act and refused to proceed with the objections pertaining to stay on the execution of the arbitral award in the present case as there was a pre-existing dispute between the parties regarding deposit made against such conditional stay.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

DELHI GOVERNMENT SETS UP PANEL FOR GRANT OF FUNDS FOR THE WELFARE OF ADVOCATES

In November 2018, the Delhi Bar Council had written to Shri Arvind Kejriwal, the Chief Minister of Delhi, requesting an annual grant of Rs 10 Crore to help it “streamline the legal system”, support needy lawyers and litigants, and build adequate infrastructure including a lawyers’ academy.

In February 2019, at an event organized in Tis Hazari Court Complex, Mr Kejriwal promised that instead of allocating funds, a committee of lawyers would be set up for making recommendations about how to use Advocates’ Welfare Fund of Rs 50 Crores.

The said promise has been reiterated by Mr Kejriwal on 29th November, 2019 whereby he stated that the grant of Rs. 50 Crores would not be a ‘one-time’ grant, but would be recurring in nature. He further stated that the Delhi Government recognizes the contribution of lawyers to legal system and society and thus, andhas fulfilled their demand for a separate scheme for their welfare.

It is also believed that this is the first time ever that any Government has set aside such a big amount for the benefit of lawyers. He further stated that a report of these recommendations would have to be submitted to the Delhi Government within ten days i.e. by 09th December, 2019.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

GOVERNMENT INITIATIVES TO MITIGATE AIR POLLUTION IN INDIA

The Government of India has recently planned and implemented the following measures and programmes to tackle extreme cases of air pollution in India, especially in Delhi-NCR regions, and for creating awareness amongst the general population for prevention, and reduction of air pollution in the country.

  1. National Clean Air Programme-

The Central Government had launched a National Clean Air Programme (Programme) to tackle the growing issue of air pollution across the country in a comprehensive manner which would help to achieve the target of 20%–30% reduction of concentration of PM2.5 and PM10 particles in air by 2024. Failing which these particles also have potential to be trapped in nose, mouth, throat and lungs of a body. So far, 102 cities mostly in Indo-Gangetic Plains have been identified for implementation of the Programme.

2. Comprehensive Action Plan and Graded Response Action Plan-

Further, the Central Government has planned to implement a Comprehensive Action Plan and a Graded Response Action Plan to prevent, control and mitigate air pollution in Delhi and NCR. Under the Graded Response Action Plan, the Delhi Government has re-implemented the Odd-Even Scheme, extended ban on diesel engine generators to Guragon, Noida, Ghaziabad, Faridabad, Sonepat, Panipat, Bahadurgarh, etc.

3. ‘SAMEER’ App

Also, the Central Pollution Control Board (CPCB) has launched ‘SAMEER’ App which provides hourly updates on the National Air Quality Index (AQI) and has also deployed 46 teams across the Delhi-NCR region to identify problem areas and catch polluting activities. The App also enables people to lodge a complaint against.

4. Environment Education, Awareness and Training Scheme-

The Ministry of Environment, Forest and Climate Change has planned to implement an Environment Education, Awareness and Training Scheme to promote environmental awareness amongst public that focus on promotion of cycling, water and electricity conservation, growing trees, reduce crowding on roads by carpooling, etc.

5. National Green Corps (NGC) Programme-

The Ministry of Environment, Forest and Climate Change has, under the National Green Corps (NGC) Programme, around 1 lakh schools have been identified as eco-clubs, whereby, about thirty lakh students would be actively participating in environment protection and conservation activities.

The Central Government has thus taken the aforesaid measures for curbing air pollution, conserving the environment and also for creating awareness among the public to participate in such conservation programmes, where possible, and lodge complaints through social and digital media against any polluting activities.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT ASSISTS POOR FARMERS

The National Capital Region is choking! One of the primary reasons is crop stubble burning in and around Delhi NCR more particularly Haryana, Punjab, U.P.

Farmers in these States due to poverty have taken to burning crop stubble in order to get rid of the crop residue of non-basmati rice that is there in the fields.

On Wednesday 13th November, 2019 a Special Bench of the Supreme Court of India consisting of Justices Arun Mishra and Deepak Gupta passed an interim Order after hearing the parties for 2 hours on the issue of severe air pollution that has engulfed the Delhi-NCR.

The Court observed that the machines that are used for getting rid of crops stubble cannot be afforded by small time farmers. It therefore directed that such machines should be provided by the State Governments of Haryana Punjab and U.P to small and marginal farmers to deal with the issue of crop stubble. The Court was of the view that punishing such farmers cannot be an ultimate solution and asked the Government to provide such poor farmers basic facilities and amenities. The Court further held “farmers are to be equipped; not punished”. The Court further directed the Central Government to prepare a scheme to protect the interests of small and marginal farmers within 3 months and stated that the said scheme should be applied across the country. The Courts also directed the adjoining States to pay incentives to their farmers from State Funds.

The Hon’ble Supreme Court of India came down very heavily on the Chief Secretaries of Haryana, Punjab and U.P. for their failure to stop farmers from stubble burning. The Court further held that these Governments failed to make advance plans to handle the pollution and held several Government authorities liable for inaction.

The Court headed by Justice Mishra questioned the Government authorities stating “can you permit people to die like this? What is the advantage of having all these developments in the country? This is a failure of machinery and scientific brain of the country”. In fact Justice Mishra orally stated that if you don’t care about the farmers and don’t have funds then tell us we will provide the funds. The Bench observed that the air pollution has become a recurring event. The Supreme Court of India has passed the following directions to deal with air pollution:

  • Chief Secretaries of Punjab U.P and Haryana to take measures to reduce crops stubble burning.
  • Local Administration both administrative and Police to be held liable if stubble burning takes place.
  • Panchayats to prepare inventory of incumbents who have burned stubble in the area.
  • Delhi Government to take steps to tackle garbage disposal
  • All demolation activities in Delhi to be banned and violators to be penalized Rs. 1 lakh.
  • To stop coal based industries in the area.
  • Sprinkling of water on roads to reduce road dust.
  • Ban on use of diesel generators.
  • Pollution Control Boards of Delhi U.P., Punjab and Haryana to stop polluting industries working against the law.

Sushila Ram and Govind Gupta

Advocates

THE INDIAN LAWYER

New Delhi.Mumbai.Hyderabad.Chennai.

DELHI STILL STRUGGLING TO BREATHE

Recently a person named Sanjiv Kumar filed a petition in High Court of Delhi challenging the Odd Even Scheme implemented by the Delhi Government to curb pollution in the national capital. He contested that Odd Even Scheme is Ultra Vires to Article 14, 15 ,19(1)(g), 21 and is also violative of Section 115 of the Motor Vehicles Act,1955. He also stated in his petition that the scheme was arbitrary, irrational, unconstitutional and applied in an unreasonable manner without determining principle cause and remedy.

The important clauses which have been stated in the petition are: –

“That Delhi Government Odd Even Scheme is being implemented to curb the Pollution, but it’s clear that the cause and remedy is totally mismatched; two wheelers that cause maximum pollution has been exempted. Also, according to 3 authorities mentioned in the petition confirm that the Odd Even Scheme does not lower pollution levels.”

The petition mentioned that the scheme was illegal as it exempts women drivers which means discrimination on the basis of gender which also violates one’s fundamental rights. The petition also says that the scheme is illogical on the basis that auto rickshaw and taxi are not within the scheme but CNG operated vehicles which were earlier introduced to lessen pollution are within the scheme.

The petitioner claims the scheme to be “nothing but political a gimmick for self-promotion and advertisements.”

After his petition was rejected by Delhi High Court, he appealed to the Hon’ble Supreme Court of India where again it got dismissed. The Hon’ble Supreme Court ruled that according to the Constitution of India State Government is empowered to make laws or by laws in public Interest.

The Supreme Court recently suo moto registered a case after air quality level in New Delhi and surrounding states increased. According to the Hon’ble Court the air quality has drastically crossed all toxic levels, even after the installation of air purifiers the quality of toxins is still high. The Hon’ble Court recently directed the Central Government to review technology from Japan with a view to tackle this increased pollution.

Aakritee Gambhir

Associate

The Indian Lawyer

HIGHLIGHTS OF THE 11th BRICS SUMMIT 2019

The Annual BRICS (Brazil, Russia, India, China and South Africa) Summit has recently been organized from 13th to 14th November, 2019 in Brazil, where Prime Minister, Shri Narendra Modi participated in the Leaders Dialogue and discussed about the following ways to bring about innovation in development of various sectors and to strengthen economic cooperation amongst the BRICS nations and other emerging economies:

  1. BRICS Business Council and New Development Bank

The partnership between two institutions, namely, BRICS Business Council, which aims at promoting and strengthening business, trade and investment ties amongst the BRICS countries, and New Development Bank (NBD), which aims at mobilizing resources for infrastructure and development projects in BRICS and other developing countries, aims at achieving the $500 Billion Intra-BRICS trade target by the next summit in 2020. Further, PM Shri Modi has requested cooperation from the said institutions and BRICS countries to build a disaster resilient infrastructure and to set up a regional office of NBD in India, in order to strengthen BRICS economic cooperation.

2. India-Russia bilateral trade

PM Shri Modi and Mr Vladimir Putin, President of the Russian Federation, further discussed and reviewed the progress made by both countries in the field of infrastructure, defence, civil nuclear energy, and the potential cooperation prospects in the field of oil and natural gas. The two Leaders also decided to organize the 1st Bilateral Regional Forum in Russia or India next year to reduce the trade barriers at regional level.

3. India-Brazil strategic partnership

PM Shri Modi and H.E. Mr. Jair Messias Bolsonaro, President of the Federative Republic of Brazil, discussed about the areas for potential investment from Brazil, including agricultural equipment, animal husbandry, post-harvest technologies and biofuels, space and defence sectors, visa free travel to Indian citizens, etc.

4. Mutual cooperation in the fields of fitness and health, water management, sanitation, counter-terrorism and such others

PM Shri Modi highlighted the increased importance for mutual cooperation in the field of trade and investment, fitness and health, sustainable water management and sanitation, better travel and work conditions, security cooperation against terrorism and other organized crimes including terrorist financing, use of internet for terrorism purpose, etc.

Thus, the aforesaid cooperation efforts have been aimed at enhancing global economic growth by identifying various areas of cooperation and business opportunities.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

HISTORY OF AYODHYA’S DISPUTE

Story of Disputed Land

Lord Ram according to Ramayana was born in Ayodhya on the banks of Sarayu  River. Ayodhya is currently located in Uttar Pradesh. According to Hindus the disputed location was earlier an ancient temple located at the birthplace of Lord Ram. Also, believed this temple was destroyed by Mughal Emperor Babur in 1528 where he built a mosque Babri Masjid which was subsequently demolished by Kar Sewaks on December 6,1992.

Trails of litigations over the disputed land

In 1855 during the British Raj a suit was filed by Mahanth Raghubar Das against the Secretary of State for India seeking permission to construct a temple for Sri Ram at Ayodhya. Trial Sub – Court ruled that land is the birth place of Lord Ram. This  was  appealed against at Faizabad District Court where it got dismissed.

On December 23,1949 when idols were found inside the Babri Masjid a crowd of 60-80 broke the locks of mosque and entered it. After which the charge of the property was given to District Magistrate Faizabad.

The first ever suit filed in independent India was on January 16, 1950 by Gopal Sing. He instituted the suit claiming his right to go inside and worship in the place where the idols were kept. He also claimed UP Government had no right to interfere in the said rights. Prohibitory injunction was sought after which no one could enter the area.

In 1959 another suit was filed by Paramhans Ramchandra Das(Nirmohi Akhara) against Zahoor Ahmad and seven others .The reliefs claimed were management of the place where the  idols were kept should be given to the plaintiff. However, on December 6,1960 this suit was withdrawn due to various reasons.

In 1961 a regular suit was filed by Sunni Central Board of Waqfs and 9 others. In the plaint they claimed that there existed a mosque 433 years ago also, adjacent to the mosque there was a graveyard. They demanded clearance of Lord Ram’s idols from the premises and give the management of the premises to the Sunni Central Board.

Yet another suit was filed in 1989 by Bhagwan Sri Ram Birajman and Sri Ram Janam Bhoomi Ayodhya (the Deity), Asthan Sri Ram Janam Bhoomi, Ayodhya (the Birth Place of Lord Ram) in which the Deity and the Birth Place were considered to be Juristic persons. The suit was filed based on the cause of action that Hindus were not freely allowed to worship at the premises where the Deity was housed. The Court held that the premises belonged to the idols and it was their absolute property and the gates were open for all Hindus. Also, the Hon’ble Court allowed the existing structures to be demolished so that the temple construction could start. After the decision there was a lot of communal violence throughout the country, due to which the case was transferred to Allahabad High Court.

The Hon’ble High Court of Allahabad on September 30, 2010 held that 2.77 acres of land be divided into 3 parts, out of which 1/3rd going to the deity’s construction of Ram Temple, 1/3rd going to Muslim Waqf Board and the remaining 1/3rd going to the Nirmohi Akhara.

This decision of the Hon’ble High Court was appealed and a Constitutional Bench of 5 Judges heard the first appeal on September 30th, 2010. The Supreme Court Constitutional Bench consisting of Chief Justice of India Ranjan Gogoi and Hon’ble Justices S A Bobde, D Y Chandrachud, Abdul Nazeer, Ashok Bhushan delivered a unanimous judgement on November 9th 2019. The Supreme Court held that the 2.77 acres of Land to be handed over for construction of Ram Mandir. Also, at the same time an alternate plot of 5 acres must be allotted to Sunni Waqf Board for construction of mosque. The Central Government has been directed to form a board for the scheme of construction within 3 months.

Thus, the long-fought battle over 2.77 acres of land came to an historic end.

Aakritee Gambhir

Associate

The Indian Lawyer

HIGH COURT REPRIMANDS TRADEMARKS REGISTRY FOR DELAY

While observing the facts of the Writ Petition filed in the Delhi High Court named Asianet Star Communications Pvt. Ltd. v/s. The Registrar of Trademarks WP no. (C)11284/2019, on 31st October, 2019, Justice Pratibha Singh noted that due to lack of coordination amongst departments of the Trademarks Office that deal with different kinds of forms, there is huge inefficiency in the processing of the trademark applications. The Judge further observed that the processing of a trademark application should be efficient and timely. In the matter in question the Trademarks Registry had failed to consider the application despite the passage of ten years.

After identifying the necessity to streamline the procedure of registering of trade marks applications, the Court ordered the Head of Trademark Registry, to file an  Affidavit mentioning that in order to obviate the recurrence of such situations in the future, which have clearly become endemic in the Trade Mark Registry, a proper procedure is required to be established for the processing of trade mark applications and registrations. Accordingly, the Registrar of Trademark shall place on record an affidavit of Mr. Hoshiar Singh, the Head of the Trade Marks Registry, Delhi, detailing the following aspects:

i) the current procedure for processing of trade mark applications,including the various steps starting from filing, acceptance of fee, allocation of application number, examination and generation of examination report, acceptance of responses, hearings held, if any, orders passed on the said files, grant of trade mark registration certificates, change of address, change of name, processing of licences and assignments, renewal notices, etc. and whether they are dealt with by one officer or by different departments, even if they relate to same application. The same may be explained by means of a flow chart;

ii) the manner and procedure for uploading of documents which is currently being followed at each and every stage by the Trade Marks Registry;

iii) whether it is considered efficient to allocate a particular trademark application to a specific officer who would then process the various forms filed in respect of that application so that the familiarity of the officer with the file would enable efficient processing of the same;

iv) insofar as post-registration formalities, such as renewals, assignments, etc. are concerned, whether the same should be dealt with by a separate department and if so whether post registration formalities of specific registered trade marks ought to be handled by a single officer.”

The Court also directed technical person from the National Informatics Centre and a senior officer from the Trade Marks Registry, Delhi who is familiar with Affidavit to the Court, to remain present in Court on the next date of hearing i.e. 5th December, 2019.

It is high time that the Trade Marks Registry should be called upon to be efficient. As India is now looking at being a global economy, registration of trade marks is a very important aspect of being recognized as a developed economy. All developed countries worldwide take great pains to protect their intellectual property rights and India must do the same to get a global recognition as a developed economy. The Courts intervention for improving the efficiency for Trademarks Registry is much required.

Govind Gupta

Associate

The Indian Lawyer

JOB POST: Hiring experienced lawyers @ The Indian Lawyer [Hyderabad]

Organization Name

The Indian Lawyer

About the Organization

The Indian Lawyer is a full-service boutique Law Firm that specializes in all aspects of commercial law both transactional and litigation/arbitration.

Job Description

We are looking at hiring lawyers with an experience of minimum 2-3 years for our Hyderabad Office

Location/Address

Hyderabad Office:

# 303, Third Floor, The Down Town Apartments, Road No. 5, Banjara Hills, Hyderabad -500034

Eligibility/Qualifications

Candidates should be knowledgeable on commercial laws and should have both written and oral communication skills in English. Only serious candidates who are ready to put in hard work should apply.

Salary

Depending on experience and qualifications

How to apply

  • CV should contain the candidate’s name and should have the Subject of Email as- “Lawyer for Hyderabad Office”
  • Position is for 1-2 lawyers

Contact info

For further queries, interested candidates may contact on:

Email- theindianlawyer@gmail.com

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